A partner with Rush, Crane, Guenther, Stuart Rush provides ongoing litigation and counsel for the Okanagan, Kwakiutl, and Pic River Ojibway First Nations as well as the Confederated Tribes of the Colville Reservation, and speaks extensively on Aboriginal rights and the use of oral history evidence. He was appointed Queens Counsel in 1992. These are his words:
On attending UBC law school in the ‘60s:
Alan Ginsberg, who was a buddy of Jack Kerouac’s, came to the university. At that time, he was active in promoting a much more accept[ing] attitude toward the use of marijuana. [He came] to one of our classes at the law school with his horn-rimmed glasses, cheery smile and big beard and got the whole class chanting, ‘Om.’ Getting all of us … you can imagine a bunch of law students? All, ‘Om, om, om!’
Rush had been active in student politics during his undergrad years at the University of Western Ontario, and found BC to be fertile ground for many of his progressive social and political ideals. As a student at UBC, he served on the UBC Senate, worked with practising lawyers to place Vietnam War resisters in Canada and joined in the occupation of the Faculty Club.
The head of the Club at the time was a law professor and one of the active participants in the occupation was the head of the Law Students’ Association. So the lines were drawn, particularly within the law school.
I found law school to be a very exciting and ennobling environment. I liked it a lot and I had great faith that the law was a capable vehicle of mobilizing social change.
On why he chose to work in Aboriginal law:
When I first started practising law, I saw that Aboriginal people were being abused and their rights trampled on. There were an inordinate number of Aboriginal people in jail as a result of heavyhanded sentencing in criminal cases. Aboriginal people were telling us they had rights to do things because they had done them for all time, and we couldn’t make any headway with those rights. That deeply and profoundly bothered me. There was no way for Aboriginal people as individuals and communities to have their history and culture … recognized in this province. Instead, until Delgamuukw, the provincial position was one of denial: ‘You don’t have rights. You don’t have any entitlements to land. You don’t have priority to the fishery.’ All of that was inconceivable to me, and detestable.
Rush originally intended to practise as a criminal lawyer, and articled with Rankin & Company with that goal in mind. Early in his articles, the firm was hired to conduct an inquest into the death of Fred Quilt, an Aboriginal person. As a junior on the case, Rush was responsible for interviewing witnesses and portraying to the court the cultural character of the community from which Fred Quilt came. The Quilt case was Rush’s entrée into Aboriginal litigation.
After I developed some expertise as a criminal lawyer, I was retained by the Gitxsan-Wet’suwet’en tribal council to be counsel on 18 fishing charges. We won them all. There’s nothing like winning cases to spread your notoriety around the Aboriginal
community. That was really the lead-in to my being retained by the Gitxsan-Wet’suwet’en to be one of their counsel on their Aboriginal title case.
Rush worked on such leading cases as Delgamuukw, Guerin, Van der Peet, NTC Smokehouse, Gladstone and Haida Nation. Here, he speaks on Delgamuukw, with which he was involved from filing the writ in 1984 through the Supreme Court of Canada decision in 1997:
The case recognized and really established the principles for the determination of Aboriginal title claims to land in the country: how those claims are advanced; what are the considerations; what constitutes proof of Aboriginal title; the stringency of proof; the factors to take into account when justifying or accommodating Aboriginal interests were all decided in that case. And most importantly, the case finally decided that in the Province of BC, Aboriginal rights and title have never been extinguished. Sparrow, Gladstone, Van der Peet and NTC Smokehouse … led to a recognition of Aboriginal rights to fish. But what Delgamuukw did was to go beyond resource-use rights to land-based rights.
So if you were to look at one case that established comprehensive threshold principles that are applicable every day in Aboriginal litigation it would be Delgamuukw. I was lead counsel on the legal team that tried that case for 14 years of its history. [It] was decided … 10 years ago this December 11th.
On the use of oral history evidence:
The courts have to realize that in order to understand the Aboriginal community you have to accept their perspective on themselves. Since Delgamuukw … trial judges have increasingly been directed by higher courts to look at what the oral histories say. It seems to be a lot easier for judges to accept historians [but] the historians’ evidence …is really the non-Aboriginal history. So there is another history, and it’s the history of the
people who have recorded their own ways and passed it on in their own ways.
On the future of Aboriginal rights in British Columbia:
Most of this province is still encumbered with Aboriginal title. Regrettably, the BC Treaty Commission has, by and large, foundered over its 15 years of existence. So if there is to be a negotiated resolution of the land question in BC, then there has to be a revitalized political will that finds its expression in new mandates and recognition of cultural values of Aboriginal people at the treaty table. You can’t really say that the legal avenue is going to be the end vehicle by which settlements and claims are fully recognized. It will happen through an interaction of processes.
Rush expresses his hope that students attending UBC Law now will be attracted to working on and developing these cases.
It’s an important part of the development of the law, which I think has to happen to give us what the real spirit of people living in this province is all about. I want to see Aboriginal people in this province recognized for the First Peoples that they are, and to have recognized the value of their culture and what they bring to our own culture. I believe that we have much to learn, and much to gain.
Written by Diane Haynes and originally published in the UBC Law Alumni Magazine, Winter 2008.